Marks v. Murphy

50 N.Y.S. 622 | N.Y. App. Div. | 1898

Barrett, J.:

Section 793 of the Code of Civil Procedure provides that, in this ' county, a party desiring a preference of any cause shall serve upon the opposite party, with his notice of trial, a notice that an application will be made to the court at the opening thereof, for leave to move the same as a preferred cause.

It is the settled practice in this district that such an application must be made at the commencement of the term for which the notice of trial is served. If not so made, the right to a statutory preference is waived.

In the present case the plaintiff should have moved for a preference upon the first Monday of January. His notice of trial was for that day, and he could apply for such a preference upon no other day. An application for a preference upon the following day was not authorized by the statute. It follows that, by his failure to move upon the first Monday of January, he waived his statutory right. His subsequent notice of trial for the February term was futile to avoid the effect of this waiver or to support another application for a statutory preference. But one notice of trial is required in this county, and all" subsequent notices are unnecessary. ■ (Code Civ. Proc. § 977.) The original notice of trial for the January term" was in full force, and the waiver of a right to preference complete, when the plaintiff moved for á preference at the February term." The application should, therefore, have been denied. It was not, as contended, addressed to the discretion of the court, but was made solely as matter of right under the terms of the statute. When so made, parties are held to strict practice. (The People ex rel. Augerstein v. Kinney, 92 N. Y. 647.)

The order appealed from should, therefore, be reversed, with ten dollars costs and the disbursements of the appeal, and the motion denied, with ten dollars costs.

Wan Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.